Mr Simon IR Ash
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
MR SIMON IAN RICHARD ASH (062743G)
Held on 20-21 March 2022 and 10 May 2022
181 Pitt Street
Emma Boothroyd (Chair)
Deborah Kirk (PCC Architect Member)
Martin Pike (PCC Lay Member)
In this case, the Architects Registration Board (“ARB”) was represented by Ms Catriona Watt of Anderson Strathern LLP.
Mr Simon Ash (“the Respondent”) attended the hearing but was not legally represented.
The Professional Conduct Committee (“PCC”) found Mr Simon Ash guilty of unacceptable professional conduct (“UPC”) in that he:
1. In respect of the first property and his client (the First Complainant) failed
a) to produce adequate Building Regulations drawings in relation to an extension at the property
b) To provide the First Complainant with adequate terms of engagement contrary to Standard 4.4 of the Architects Code.
c) To communicate adequately with the First Complainant.
2. In respect of the second property and his client (the Second Complainant) failed:
a) To provide the Second Complainant with adequate terms of engagement contrary to Standard 4.4 of the Architects Code;
c) To deal adequately with a complaint by the Second Complainant contrary to Standard 10 of the Architects Code.
and that by doing so, he acted in breach of Standards 4 and 10 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).
The sanction imposed is a penalty order in the sum of £1,000.
- The Charge against the Respondent is that he is guilty of UPC.
- The Board is represented by Ms Catriona Watt. Mr Ash (“the Respondent”) has attended this hearing but is not legally represented, although he is assisted by a friend Mr Stewart and is receiving professional support from a neurodiversity consultant Ms Halfpenny. Mr Ash faces an allegation of unacceptable professional conduct (“UPC”) and/or serious professional incompetence (“SPI”) based on two particulars in that he:
- In respect of the first property and his client “Dr H” (the First Complainant) failed
- to produce adequate Building Regulations drawings in relation to an extension at the first property;
- to provide the First Complainant with adequate terms of engagement contrary to Standard 4.4 of the Architects Code.
- to communicate adequately with the First Complainant.
- In respect of the second property and his client “Mr T” (the Second Complainant) failed:
- to provide the Second Complainant with adequate terms of engagement contrary to Standard 4.4 of the Architects Code;
- to produce adequate Building Regulations drawings in relation to an extension at the second property;
- to deal adequately with a complaint by the Second Complainant contrary to Standard 10 of the Architects Code.
- UPC is alleged in relation to allegation 1b, 1c, 2a and 2c and SPI is alleged in relation to allegations 1a and 2b.
- This case arises out of two separate complaints made by two different and unrelated clients of the Respondent. Dr H (“the First Complainant”) made a complaint in respect of the professional services carried out by the Respondent who, at the material time, was trading under the name, High Street Architects. The First Complainant complained that the Respondent had failed to properly prepare and progress the application for the Building Warrant and had not responded to requests for information. Mr T, (“the Second Complainant”) complained that Respondent had not properly prepared an application for a Building Warrant and despite a number of revisions there were still outstanding issues and the Respondent had not properly responded to his complaint and request for a refund.
- The background to the allegation relating to the First Complainant relates to her instruction of High Street Architects in September 2018 to assist with an extension to her property. Initially, the First Complainant was liaising with another architect Mr C, who was working at the practice. Mr C sent the First Complainant a “Design Services Agreement” in September 2018. The First Complainant confirmed she wished to proceed to instruct the firm and the Respondent took over conduct of the project and applied for planning permission.
- The deadline for the determination of the planning application was on 12 February 2019. On the 18 February 2019 the First Complainant emailed Mr C to ask what was happening with her application. The First Complainant also mentioned that she had emailed “Lisa” for an update the previous week but had not had a response. On the same day Mr C emailed the First Complainant to explain that he was no longer working with the Respondent but he provided the Respondent’s email address and telephone number so that that she could reach him via email or telephone. Mr C also said that he had checked, and planning permission had been granted and the “documentation should be issued imminently.” The Inquirer confirmed that the planning application was granted on 5 February 2019.
- On 5 March 2019 the First Complainant chased the Respondent for an update and he replied immediately with his mobile telephone number and requested that she telephone him. A Building Warrant was applied for on 5 April 2019 and around that time there was an exchange of emails regarding the appointment of a structural engineer. The Building Warrant application was found not to be in compliance with Section 9 of the Building (Scotland) Act 2003 and on 11 September 2019 a list of failures and proposed grounds of refusal were sent to the Respondent.
- The First Complainant discovered this development after contacting the Council directly in October 2019. The First Complainant had lost all confidence in the Respondent and there was no further contact between them. The First Complainant states that the Respondent’s drawings were poor and contributed to delay in her project.
- The Second Complainant instructed the Respondent in March 2020 to assist with a Building Warrant application for a kitchen extension. The Second Complainant states that after the Respondent had supplied plans to East Ayrshire for a Building Warrant on three occasions, he still did not have approval and there were a number of outstanding problems and queries. The Second Complainant stated that he had difficulty contacting the Respondent and was told by the Respondent that he had breached the contract by contacting the Council. The Second Complainant stated he did not have a contract and wanted a refund of the money paid.
- On 29 July 2021, Mr Robert Johnston, an Inquirer appointed by ARB, produced a report in which he identified a number of errors and failure to achieve the required professional standards in relation to the Respondent’s work.
- All the allegations are denied. It is further denied that if any factual allegations are found proved, such failings amount to UPC or SPI.
- In reaching its decisions, the Committee has carefully considered the live evidence of the Complainants and the Inquirer, together with the documentary evidence presented to it in the Report of ARB’s Solicitor and the 132 pages of documents exhibited to it. The Respondent has not provided any further documents or given evidence. No adverse inference has been drawn by the Committee although it has borne in mind that the submissions made by Mr Stewart have not been tested in cross examination or supported with any documentary evidence.
- The Committee has accepted the legal advice given by the Chair. It has had regard to the fact that the burden of proof is on ARB and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC/SPI is a matter for the Committee’s independent judgment to which no burden of proof applies.
Findings of fact
- The Committee makes the following finding of facts:
- The Committee finds the facts of this allegation proved for the following reasons:
- . It is clear that the drawings that were submitted to Building Control were inadequate as the application for a Building Warrant was refused. The letter dated 11 September 2019 from East Dunbartonshire Council states as follows,“The application for Building Warrant detailed in the report overleaf has now been considered and found not to be in accordance with Section 9 of the Building (Scotland) Act 2003 as the information submitted with the application does not provide or fully indicate:-*that the work or provision of any services involved will be carried out in accordance with building regulations; and/or
*that the building when constructed will comply with building regulations; and/or sufficient information in relation to the type of work specified in procedure regulations to show that the building will comply with building regulations. … A first report is overleaf providing details of the failures and proposed grounds of refusal following a detailed procedural and technical check.”
- The Committee considered that as a matter of fact, the drawings were not adequate for Building Warrant purposes and the deficiencies and failures with the drawings are noted within that letter. The Inquirer confirmed in his oral evidence and his report at paragraph 3.3.10 that having inspected the drawings and the correspondence from the Council “The drawings prepared by the Architect for the Building Warrant application did not comply with the guidance in the Building Standards Procedural Handbook or that issued by the Council…..”
- In the circumstances, the Committee finds this allegation proved.
- The Committee finds the facts proved for the following reasons:
- It is not in dispute that the First Complainant was provided with a “Design Services Agreement” (The Agreement) dated 3 September 2018. The Committee has examined that agreement carefully and noted the requirements of Standard 4.4 of the Architects Code. The Agreement does not contain any statements about the Respondent’s insurance provision, that he has a complaints-handling procedure available on request or that he is regulated by ARB and subject to the Architects Code. In these areas the Committee determined that the terms of business provided to the First Complainant was inadequate in that it did not contain all of the information required by Standard 4.4.
- The Inquirer agreed that these terms were not contained within the Agreement. In his report, the Inquirer raised deficiencies regarding a lack of information regarding provision for suspension and alternative dispute resolution (“ADR”). The Committee considered that there was no criticism of the Agreement in relation to those aspects. The Code requires information about suspension or termination and information about termination is provided. The Code requires information about ADR only if the contract is subject to those schemes and there is no evidence that this applied in relation to this project.
- In respect of other information contained within the Agreement, the Inquirer was critical that the scope of the work was ambiguous, and that the Respondent had included incorrect information regarding Health and Safety. Whilst it may be good practice to include information about the client’s obligations under the CDM regulations, it is not a requirement of Standard 4. Similarly, whilst the Committee agrees that the information within the Agreement could have been clearer about the scope of the work, it is nevertheless adequately covered so that the First Complainant was clear about what work the Respondent was undertaking and how he was going to approach it.
- By reason of the facts found proved, the Committee therefore finds that the Respondent’s written agreement with the First Complainant was not in compliance with Standard 4.4 of the Code as outlined above.
- The Committee finds this allegation proved for the following reasons.
- The Committee noted that the First Complainant was advised by Mr C on the 18 February 2018 that planning permission had been granted. It appears from the correspondence that the First Complainant had been trying to contact “Lisa” at High Street Architects without a response. There is no evidence that the Respondent was made aware of this. Mr C’s email confirms that he had checked the portal but that the documentation had not been issued at that point. The Committee is unable to conclude that the Respondent was aware at that stage that planning permission had been granted.
- It is not clear when the documentation was issued but, in any event, the First Complainant emailed the Respondent on 5 March to chase progress. The Respondent replied immediately with his mobile number and asked the First Complainant to call him. In her evidence, the First Complainant confirmed there were telephone conversations with the Respondent, but she could not now recall the detail. The Committee considers that up to this point communication was adequate.
- Looking at the exchange of emails between the First Complainant and the Respondent regarding the appointment of the structural engineer the Committee considers that the Respondent did not provide the information and explanations the First Complainant was asking for. The Respondent did not provide the name of the structural engineer nor explain what the fees would cover. This is despite the First Complainant making it very plain in the email exchange that she was asking for this information so she could make an informed choice. This led to a situation where the Building Warrant application was submitted without the engineer’s input.
- The Building Warrant application was submitted on 5 April 2019. It was expected by the First Complainant that there would be queries by the Council as there was no structural engineer input. The First Complainant explained in her oral evidence that she hoped the queries would set out what the engineer needed to address, and she was taking steps to appoint her own engineer once the response had been received. The Committee noted there was no evidence of any arrangement that the First Complainant would be notified of the outcome. In addition, the Respondent’s terms of business specifically excluded the list of queries being forwarded to the First Complainant.
- When the application was initially determined on 11 September 2019, the Respondent took no steps to inform the First Complainant of the outcome or what the next steps would be. It was only because the First Complainant contacted the Council directly in October 2019 that she found out what had happened. The Committee considers that the Respondent had a professional responsibility to inform his client that the application had been determined and explain the next steps, regardless of the position with the structural engineer.
- The Committee considered that the Respondent’s communication in respect of the instruction of the engineer and the Building Warrant application was inadequate and in breach of Standard 6.3 of the Code, “You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.”
- The Committee finds the facts proved for the following reasons.
- There is a straightforward conflict of fact in relation to this allegation. The Second Complainant stated in his complaint to ARB, in his witness statement, and in his oral evidence that he never received any terms of engagement from the Respondent.
- In his response to ARB dated 9 December 2020, the Respondent produced a copy of a Design Service Agreement dated 15 March 2020 which contained the Second Complainant’s details. It was suggested to the Second Complainant by Mr Stewart that this document was provided and subsequent references to a contract and breach of contract in messages sent by the Respondent demonstrated that at the very least the Respondent considered that a contract had been sent.
- The Committee noted that the Second Complainant was firm in his evidence that he had never received or signed any contract. When asked by Mr Stewart why he never raised the issue at the end of the relationship when the Respondent was talking about breach of contract, the Second Complainant stated that this was because the relationship had ended and he knew that there was no contract. In the view of the Committee this was an entirely reasonable reaction.
- The Committee considered that the Second Complainant had been clear and consistent in his evidence that he never received any terms and conditions of business and it considered this was credible.
- The Respondent has not been able to produce any covering letter, message or email forwarding the contract to the Second Complainant. There is no signed copy and no evidence that the Respondent ever chased the Second Complainant for a signed copy or sent any message to ensure it had been received. There is no credible evidence before the Committee that would support the conclusion that the contract was ever sent. In the circumstances the Committee considered it was more likely that it was not sent.
- The Committee considered that this failure was in breach of Standard 4.4 of the Code.
- It is clear that the drawings that were submitted to building control were inadequate as the application for a Building Warrant was refused. The letter dated 26 May 2020 from East Ayrshire Council states as follows,“The plans and specifications, which have been submitted for the above Building Warrant application have been assessed for compliance with the Building Standards (Scotland) Regulations 2004.During this process a number of items have been noted which either do not illustrate full compliance with the Building Standards or which are inadequately detailed.”
- The Committee considered that as a matter of fact, the drawings were not adequate for Building Warrant purposes and the deficiencies and failures with the drawings are noted within that letter. The Inquirer confirmed in his oral evidence and his report at paragraph 4.3.6 that having inspected the drawings and the correspondence from the Council “The drawings prepared by the Architect for the Building Warrant application complied neither with the guidance in the Building Standards Procedural Handbook nor good practice.”
- In the circumstances, the Committee finds this allegation proved.
- The Committee finds this allegation proved for the following reasons:
- The Committee considered that at the point at which the Second Complainant terminated his services it was clear he was making a complaint. The text message sent by the Second Complainant confirms he has lost confidence in the Respondent and will be contacting ARB. The Respondent sent a text message back stating, “You are actually in breach of contract you are welcome to report me to ARB I haven’t done anything wrong.” In the view of the Committee this was not an appropriate or courteous response to the complaint about the way the Respondent had dealt with the Building Warrant application.
- The Second Complainant sent a further email via Skype which requested a refund and a reply within 10 days or he would proceed with further action. The Respondent’s reply was, “Save time. Proceed now. You had a contract and you were in breach of it. BTW I have no interest in Trading Standards I out rank them.”
- The Committee determined that these responses to the complaint were dismissive and did not address the Second Complainants concerns. The Respondent did not respond to the issues raised in the complaint and did not provide the Second Complainant with a courteous or professional response.
- The Committee concluded that the Respondent did not deal with a complaint appropriately in breach of Standard 10 of the Code.
Finding on UPC and/or SPI
- Having found the facts of all allegations proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC and/or SPI. UPC is defined as conduct which falls short of the standard required of a registered person. SPI is defined as a serious failure to meet the required standard of skill expected of a member of the profession undertaking a similar kind of work at the same time.
- In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Legally Qualified Chair. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect.
- The Committee has considered the authority of Spencer v General Osteopathic Council  EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions… a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.
- Similarly, so far as SPI is concerned, it can relate to something that an architect has or has not done, but an unexpected or unsatisfactory outcome is not in itself proof that an architect has been seriously incompetent.
- In considering where incompetence becomes serious incompetence, the Committee has borne in mind that the following features make it more likely that incompetence may be viewed as serious:
- when the consequences are, or could have been, particularly serious;
- where the architect’s standard of competence falls significantly below that expected;
- where a number of failings, while not serious individually, together demonstrate a pattern of incompetence;
- where a pattern of incompetence suggests an architect may not act competently in the future.
Finding in relation to UPC
- It is the Committee’s finding that the facts found proved in relation to the non-compliant design services agreement, (Particular 1b) the failure to send terms of business to the Second Complainant, (Particular 2a) and the failure to adequately communicate with the complainants about the important aspects of their of their projects and respond to a complaint (Particulars 1c and 2c) are serious failings and amount to UPC.
- Notwithstanding the Respondent’s communication style, the Committee considers that it is incumbent upon architects to ensure that their communications with clients are professional and courteous. The Committee considers that the Respondent’s comments to the Second Complainant’s Skype message were off-hand and dismissive. To his credit, in the letter to ARB dated 9 December 2020 the Respondent appeared to accept that his response was abrupt and on reflection he ought to have requested the complaint was formalised. The Committee considers that the Respondent did not make any meaningful attempt to resolve the Second Complainant’s concerns about the fees he had paid and the lack of progress on his application, in breach of Standard 10 of the Code.
- The Committee also considers that the Respondent did not properly explain to the First Complainant about the instruction of the structural engineer or appropriately answer her queries about his identity and provide a breakdown or explanation of the works included in the fee. The Respondent’s failure to properly respond to these queries ultimately damaged the First Complainant’s confidence in him.
- The Committee notes that the Respondent did not update the First Complainant about the refusal of the Building Warrant application, and she had to chase the matter directly with the Council. The Committee has noted the explanation given by Mr Stewart that the Respondent felt under pressure and effectively withdrew from all contact with the First Complainant. Whilst that may be understandable given the particular feelings of the Respondent, he nevertheless had a responsibility as a professional under the Code to keep his client informed and answer any queries that she had. It is part of his professional responsibility pursuant to Standard 6.3 “to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.” Standard 2.3 states, “You are expected to ensure that the necessary communication skills and local knowledge are available to you to discharge your responsibilities.”
- The Committee noted that both Complainants stated they lost confidence in the Respondent and they considered that their projects had been delayed. Both Complainants stated that the Respondent’s failings had left them out of pocket in relation to the fees paid to the Respondent for the Building Warrant.
- The Committee finds that, so far as the allegations found proved and the corresponding breaches of the Code are concerned, both individually and collectively, the Respondent’s failings are serious and adversely impact both on the reputation of the Architect and the profession generally. Such failings can quite properly be categorised as UPC.
- The Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct.
Finding in relation to SPI
- The Committee notes that it was accepted by the Inquirer that it is usual and routine for queries to be raised in relation to applications for a Building Warrant. The Inquirer stated in his evidence that in his career, he had only ever had one application pass on the first submission. The Committee therefore took the view that the fact that queries were raised in relation to the application did not necessarily indicate that the Respondent was lacking in competence.
- The Inquirer stated in his oral evidence that in relation to the queries raised by the Council in relation to the First Complainant’s project these were all items that could potentially be raised and there was not one in particular that suggested that the Respondent lacked the necessary competence. Rather, the basic nature of the queries and the number of them suggested that the Respondent lacked an adequate working knowledge of the relevant Building Standards. The Inquirer confirmed that there was not one individual query that undermined the safety or viability of the project, instead these were basic matters which were easy to remedy. The Inquirer stated that these were matters that ought to have been addressed in the original submission.
- In response to questions from Mr Stewart on behalf of the Respondent, the Inquirer agreed that he considered the Respondent would have been able to address the outstanding queries raised in the First Complainant’s Building Warrant application.
- The First Complainant dispensed with the Respondent’s services before he had an opportunity to address these matters and there is no evidence before the Committee about whether these matters would have been resolved by the Respondent by re-submitting the plans and dealing with the outstanding queries. In these circumstances the Committee could not conclude that the drawings reached the threshold of serious professional incompetence.
- In relation to the second complaint the Respondent submitted the drawings on three occasions. The Inquirer in his report sets out that the application was received on 28 April 2020 and validated on 11 May 2020. The letter from the Council dated 25 June 2020 sets out a list of 22 points of further information. The Inquirer concludes, “The nature of these points is not inconsistent with a first report from Building Standards in response to an application. However, the extent of them, for a small extension indicates a significant lack of completeness in the application.” In his oral evidence the Inquirer confirmed that in addition to this, it was the number of basic queries which were not addressed on two subsequent occasions which led him to the conclusion that the drawings fell far short of the standard which would have been expected of an ordinarily competent architect.
- The Inquirer stated in his report that it was not clear what information was provided in response to the initial list. In his oral evidence the Inquirer confirmed that he had based his conclusions on what had been provided by the Second Complainant in terms of drawings and letters. Although there was evidence on the Council’s portal about when the submissions were lodged, the supporting drawings and other information were not accessible to the Inquirer. Although the Inquirer was in receipt of the letters from the Council and some of the drawings, the Committee considered this was only part of the picture.
- The Inquirer’s view was based on the letters from the Building Standards Surveyor which concluded that the points were not adequately addressed. The Inquirer had not reviewed all of the documents submitted on each occasion. The Inquirer therefore could not state from his own review whether the subsequent drawings that were submitted were inadequate. The Inquirer confirmed in his evidence that he was not clear which drawings were submitted at which time. The Inquirer stated that as the letters from the Building Standards Surveyor either re-iterated earlier points or stated that there was a lack of clarity in the information provided, he concluded that the drawings had not addressed these issues.
- In these circumstances the Committee was not satisfied that ARB had discharged its burden to demonstrate that the drawings did not address the points raised and amounted to serious professional incompetence. The Committee considered that it had not been provided with sufficient evidence to support the conclusions of the Building Standards Surveyor contained within the letters that the drawings were inadequate. The Committee was not satisfied that this was sufficient to establish SPI.
- The Committee noted that in respect of the first and Second Complainant collectively there could be said to be a pattern of poor performance in that there were two applications submitted which resulted in an excessive number of basic queries. However, given the Inquirer’s evidence that there are nearly always some queries raised and it is very rare that applications are passed on the first submission the Committee did not consider that this was sufficient to reach the threshold of serious professional incompetence. The Committee accepted that it would be good practice to attempt to address all possible queries in the first submission. However, the nature of the queries raised was not so serious as to affect the viability of the proposed works or suggest that the Respondent’s drawings were fundamentally flawed. The Committee did not consider that the nature and extent of the queries in respect of two different projects which were submitted to two different local authorities over a year apart cumulatively amounted to serious professional incompetence.
- The Committee noted that the Respondent has been a Registered Architect for 23 years. Mr Stewart submitted that the Respondent had successfully obtained Building Warrants in a significant number of projects. The Committee was unable to verify this information but it is reasonable to conclude that the Respondent has been undertaking this work during his career. Aside from the two complaints, there was no other evidence before the Committee that the Respondent was lacking in competence generally in this area.
- At this stage in the proceedings the Respondent gave oral evidence to the Committee. He also adduced further evidence in the form of an updated Terms and Conditions of Business letter, a Project Introduction Protocol, a reference dated 4 April 2022 from Louise Harker, a reference dated 3 May 2022 from Peter Ballantine and a draft reasonable adjustments letter to accompany future planning and building warrant applications. In addition, Ms Halfpenny set out a statement which outlined all the work that had been undertaken to date with the Respondent to improve his communication and general business practice and the work that was proposed for the future.
- Ms Watt set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. Ms Watt submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. Ms Watt confirmed that the Respondent had no previous regulatory history with ARB. She submitted that the Committee might be minded to consider the following aggravating factors:
- There were repeated failings on two unconnected projects which resulted in periods of delay and frustration for clients;
- The Respondent has demonstrated limited insight and remediation in relation to his conduct which suggested there was a risk of repetition.
- Mr Stewart addressed the Committee in mitigation. Mr Stewart submitted that the Respondent had only tried to do his best and it was a matter of genuine regret that the relationship with the Complainants broke down and the complaints were not addressed. Mr Stewart submitted that these were isolated matters which occurred within a short period at a time when the Respondent was under extreme stress as a result of the breakdown of the partnership arrangement. Mr Stewart submitted that the Respondent had undergone a period of reflection and acknowledged that he could and should have handled these matters better and had now put in place strategies to prevent a repetition. Mr Stewart explained that the Respondent’s dyslexia had caused him communication difficulties which he had worked really hard to address going forward. Mr Stewart submitted that the Respondent had difficulty in expressing himself clearly in relation to his remorse and remediation, but he took these matters extremely seriously and only wanted to help his clients.
- The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and ARB and to declare and uphold proper standards of conduct, behaviour and competence. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the legally qualified chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the sanctions guidance, and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.
- The Committee has identified the following aggravating factors:
- The Respondent’s failings had a significant impact on two clients, resulting in the breakdown of the professional relationship and delays to their project. This caused both Complainants frustration and upset;
- The Respondent has demonstrated limited insight and remediation which is still developing.
- The Committee has identified the following mitigating factors:
- The Respondent has no adverse regulatory history;
- The failings occurred during an isolated period when the partnership was breaking down and the Respondent was subject to considerable stress;
- The Respondent has engaged in the ARB process and taken on board the learning;
- The Respondent has taken corrective steps to prevent further issues arising;
- The Respondent has expressed genuine regret for the situation and acknowledged that he could have handled matters better.
- The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
- The Committee first considered whether to impose a reprimand. The Committee considered that the Respondent did demonstrate some of the factors that would make this sanction appropriate including previous good disciplinary history, genuine expression of regret and some insight into failings. However, it was only today that the Respondent had provided oral evidence of the steps he had taken to prevent problems of this nature occurring in the future and explained that there were still things that he needed to think through and put in place. The Committee considered that this behaviour would be unlikely to be repeated if the correct steps were taken by the Respondent to manage projects and to outline clearly his communication expectations with clients and others. However, given the seriousness of the UPC found proved, and the effect on the Complainants and the reputation of the profession the Committee considered the Respondent’s failings too serious for such a reprimand to be either appropriate or proportionate.
- The Committee then considered whether to impose a penalty order. It noted that this sanction is appropriate where the offence is too serious to warrant a reprimand. It considered that this was the appropriate and proportionate sanction given that some of the factors for a reprimand were identified above. The Committee noted the Respondent’s long career and considered that he had taken on board the lessons learned from these projects and the ARB process as a whole. The Committee considered that this process had been difficult for the Respondent, but he had taken positive steps to engage and begin to address the failings identified. The Respondent was honest and acknowledged that this was a work in progress. The Committee considered that the Respondent had found himself in a challenging situation with the breakdown of the partnership and did not have the necessary support or insight to deal with the complaints from his clients.
- The Committee considered that a penalty order, together with its findings in relation to UPC, would be sufficient to mark the conduct as unacceptable and uphold the reputation of the profession.
- Having determined that a penalty order was the appropriate and proportionate sanction the Committee considered a suspension order. The Committee did consider carefully whether the public interest required a suspension. The Committee did not consider that the Respondent lacked sufficient insight to be able to practise appropriately. The Committee considered that a penalty order was sufficient to protect the public interest and it considered that preventing the Respondent from practising as an architect for a period was unduly punitive.
- The Committee therefore imposes a penalty order in the sum of £1000. The Committee considers this to be an appropriate amount to reflect the seriousness of the Respondent’s failings. This amount should be paid within 28 days.
- That concludes this determination.